Articles

Disability, Ambivalence, and the Law

In this Article, I advance a new frame through which to organize discourse on disability and the law: the notion of ambivalence. I make two claims, one descriptive and one normative. Descriptively, I argue that ambivalence pervades encounters with disability. Disability attracts because it is a force that makes us human and disability repels because it is a force that threatens our humanity. The tension
between these sentiments is not easily tolerated and tends to prompt denials of
ambivalence; we embrace a conscious view of disability that belies our mixed
sentiments and we suppress reactions to disability that conflict with this conscious
view. Normatively, I argue that the law should express and expose ambivalence about disability. When we deny ambivalence, I argue, we cannot account for our genuine sentiments and we cannot prevent suppressed sentiments from emerging, intensified, in harmful and unanticipated forms. To avoid these dangers, the law
should prevent the embrace of unequivocal views of disability as valued, devalued,
or neutral, and seek to expose ambivalence about disability to the public. This
prescription calls into question the prevailing orthodoxies of disability law.

Comparative Effectiveness Research Under the Patient Protection and Affordable Care Act: Can New Bottles Accommodate Old Wine?

The Patient Protection and Affordable Care Act (PPACA), as amended by the
Health Care and Education Reconciliation Act of 2010, initiated comprehensive
health reform for the healthcare sector of the United States. PPACA includes
strategies to make the American healthcare sector more efficient and effective.
PPACA's comparative effectiveness research initiative and the establishment of the
Patient-Centered Outcomes Research Institute are major strategies in this regard.
PPACA's comparative effectiveness research initiative is one in a long line of
federal initiatives to address the rising costs of healthcare as well as to obtain better
value for healthcare expenditures. The key question is whether the governance and
design features of the institute that will oversee the initiative will enable it to
succeed where other federal efforts have faltered. This Article analyzes the federal
government's quest to ensure value for money expended in publically funded
healthcare programs and the health sector generally. This Article will also analyze
what factors contribute to the possible success or failure of the comparative
effectiveness research initiative. Success can be defined as the use of the findings of
comparative effectiveness to make medical practice less costly, more efficient and
effective, and ultimately, to bend the cost curve.

In this Article, I describe and examine the severe shortcomings in women's
autonomy in the context of reproductive choices in the medical arena. The
reproductive choices I explore are those choices that involve gestation: abortion,
fertility treatments, and interventions during pregnancy. Due to state and medical
interests in the fetus, I describe how information conveyed to patients making
reproductive choices is biased towards fetal interests, relies on female stereotypes,
and is still conveyed with the objective authority of the medical profession.
Moreover, reproductive choices implicate women's values and identity interests that
reach beyond medical concerns, which are not part of the informed consent doctrine
at all. The narrow, individualistic informed consent torts doctrine intended to
protect patient autonomy does not do enough in this context to balance bias nor does
it mandate discussion of important identity interests and values. Accordingly, I
argue that when faced with reproductive choices, women are not provided the
balanced and comprehensive information needed to promote their autonomy.
In response to the breakdown in patient autonomy I describe, instead of leaving
women alone to make choices or regulating in order to protect them from their
choices, a broader framework for supporting reproductive choices should be
established. In light of the interdependence of woman and fetus, as well as the
broader social context shaping these decisions, I argue that a more contextual,
relational perspective of autonomy should be the goal of informed consent in the
context of reproductive choices. I suggest a number of reforms that aim to optimize
patient autonomy from a relational perspective. I suggest a broad, deliberative
doctor-patient consultation and legal reforms that create more balance between the
pull towards intervention and fetal protection on the one hand, and non-intervention
and protection of women's personal identity interests on the other.

Notes and Comments

Religious Exemptions to the PPACA's Health Insurance Mandate

Arguably the most controversial change to the U.S. healthcare system written
into the Patient Protection and Affordable Care Act ("PPACA" or the "Act") is
what has been colorfully termed the Act's "individual mandate," the provision that
establishes tax penalties for those who do not maintain health insurance in 2014 and
beyond. Though the health insurance mandate does not go into effect until 2014, it
has already faced numerous constitutional challenges in district and circuit courts,
with entirely inconsistent results. Conflicting decisions regarding the Act's
constitutionality at the circuit court level cry out for Supreme Court review. But
while the individual mandate's validity under either the Commerce Clause or
Congress's taxing power has been the focal point of litigation thus far, another
aspect of the individual mandate may undermine the goal of establishing universal,
affordable healthcare coverage for all Americans. As currently written, the religious
conscience exemption from the PPACA's individual mandate threatens the efficacy
of the Act and potentially exposes it to legal challenges under the Constitution's
Religion Clauses.
In addition to establishing tax penalties for those who do not maintain
"minimum essential coverage," section 1501 of the PPACA also creates exemptions
from those penalties. Under the heading "religious exemptions," the Act sets out
two distinct categories of individuals who are exempt from the tax: those with a
"religious conscience" objection to insurance and those who are members of a
"health care sharing ministry."

Access to Elective Abortions for Female Prisoners Under the Eighth and Fourteenth Amendments

Currently, there is no clear national policy regarding access to elective abortions
for pregnant inmates. The federal courts have split on the issue of whether female
inmates have a right to elective abortions and disagree about what that right
substantively entails. A national standard is necessary to protect pregnant inmates'
rights to elective abortions. Given the current political climate, which is particularly
hostile towards abortion rights, it is the United States Supreme Court that can most
effectively accomplish the goal of establishing a clear national policy regarding the
rights of female prisoners to have elective abortions. This Note will examine the
likely outcome should the Supreme Court hear a case to resolve the current circuit
split. In light of the Court's recent decisions relating to abortion rights under the
Fourteenth Amendment in Planned Parenthood v. Casey and Gonzalez v. Carhart,
the Court will likely rule that pregnant inmates must have meaningful access to
elective abortions under the Fourteenth Amendment. The rationales expressed by the
Sixth, Third, Fifth, and Eighth Circuits in deciding the relevant cases likewise
suggest this result. The Court, however, will likely find that denying pregnant
inmates access to elective abortions does not constitute cruel and unusual
punishment under the Eighth Amendment.

Recent Court Decisions

The United States Court of
Appeals for the Ninth Circuit recently held that Washington State Department of
Health's ("Department") certificate of need ("CON") regulations, which restrict the
number of hospitals performing elective percutaneous coronary interventions
(PCIs), may be unconstitutional as an unreasonable burden on interstate commerce.
Yakima Valley Memorial Hospital ("Memorial"), the plaintiff, operates a
nonprofit hospital in Yakima, Washington. Memorial currently performs PCIs,
procedures used to treat diseased arteries of the heart, only in emergency situations.
Additionally, Memorial seeks to perform elective PCIs. Memorial, however, must
be licensed under Washington's CON regulations before offering elective PCIs to
patients.

The United States Court of Appeals for the Ninth Circuit held that a California statute, which requires pharmacy benefit managers (PBMs) to disclose the findings of a biannual
drug pricing study to insurers, did not violate the First Amendment.
PBMs are business entities that act as intermediaries between pharmacies and
insurers. They reimburse pharmacies for submitted claims according to a networkwide
rate that is lower than the rate generally paid by the pharmacies' uninsured,
cash-paying customers. California Civil Code section 2527 compels PBMs to report
pharmacies' pricing for private uninsured customers to insurers. This allows
insurers to compare the PBMs' reimbursement rates against the prices that
pharmacies actually charge customers.

On October 3, 2011, the Supreme Court heard a consolidated appeal by the current Director of California's Department of Health Care Services ("Director"), the defendant appellant
in three Ninth Circuit cases. The appeal focuses on whether individuals have a cause of action under the Supremacy Clause to enjoin California from implementing a Medicaid rate reduction, which does not comply with the Federal Medicaid Act's procedures.